R.K.K. v. Cooperators General Insurance Co., 2021 CanLII 127457

Citation: R.K.K. v. Cooperators General Insurance Co., 2019 ONLAT 19-002834/AABS

In the matter of an Application pursuant to subsection 280(2) of the Insurance Act, R.S.O. 1990, c I.8, in relation to statutory accident benefits.

Between:

R.K.K.

Applicant

and

Cooperators General Insurance Co.

Respondent

SUPPLEMENTARY DECISION

ADJUDICATOR: Robert Watt

APPEARANCES:

For the Applicant: Raj Kumari Kalsi, Applicant Kate MacLeod, Counsel

For the Respondent: Emily Schatzker, Counsel Neha Vinayak, Counsel

Court Reporter: Bruce Porter

HEARD: In-person on February 24-27, 2020

BACKGROUND

1The applicant was injured in an automobile accident on January 9, 2017 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”).¹

2A four-day videoconference hearing was held in February 2020 following which I rendered a decision on June 17, 2020 (the “decision”).² In the decision, I dismissed the applicant’s claim for an income replacement benefit (“IRB”) and a medical benefit. I also found that the applicant’s injuries fell within the Minor Injury Guideline (“MIG”).³

3The applicant sought a reconsideration of the decision on the grounds that I mischaracterized and failed to consider important evidence about her chronic pain and functional limitations, incorrectly applied the test for entitlement to medical benefits, and made certain conclusions unsupported by meaningful analysis. The applicant’s position was that had I not made these errors, that my determination on both the issues of the MIG and entitlement to IRBs would likely have been different.

4On March 2, 2021, the Tribunal granted the applicant’s reconsideration request⁴ and found:

(i) That I misapprehended the evidence of the applicant’s family physician, Dr. Masud, regarding the applicant’s chronic pain and her entitlement to IRBs;

(ii) That I misapprehended the evidence of Ms. Farhana Jessa, occupational therapist, by discounting Ms. Jessa’s evidence as merely reflective of the applicant’s subjective reports;

(iii) That there were no actual finding that the applicant’s injuries met the definition of a minor injury and no discussion of how her chronic pain complaints factored into my analysis; and

(iv) The reasons provided for my decision on the issue of IRB entitlement did not identify key factual findings to demonstrate how the legal tests applied to those facts, and no clear reasons were given for my finding on this issue.

5As a result, the matter was referred back to me as the original adjudicator for a redetermination based on the existing record.

ISSUES IN DISPUTE

6The issues in dispute are:

(i) Are the applicant’s injuries predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 limit and in the MIG?

(ii) Is the applicant entitled to an IRB in the amount of $256.31 per week for the period from November 10, 2017 to date and ongoing?

(iii) Is the applicant entitled to a medical benefit in the amount of $23,581.00 submitted on August 8, 2019 and denied on August 23, 2019?

(iv) Is the applicant entitled to interest on any outstanding amounts?

RESULT

7I find that:

(i) The applicant’s injuries fall within the MIG;

(ii) The applicant is not entitled an IRB in the amount of $256.31 per week for the period from November 10, 2017 to date and ongoing;

(iii) The applicant is not entitled to a medical benefit in the amount of $23,581.00; and

(iv) The applicant is not entitled to any interest.

ANALYSIS

Are the applicant’s injuries predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 limit and in the MIG?

8The analysis of the law regarding the MIG is set out in the decision at paragraphs [27] to [30].

9The issue to be reviewed in this matter is the diagnosis of chronic pain and its effect on the person’s function, whether the pain is bearable without treatment and whether the pain is more than a sequelae of the accident injuries. I find for chronic pain to take someone out of the MIG, however, there must be an effect on their functionality. There is no medical evidence that the applicant’s accident-related injuries have had a detrimental impact on her functionality. More is required to establish to what extent a chronic pain condition, be it syndrome or “chronicity of symptoms”, affecting functionality. This opinion must be supported by medical evidence that establishes an applicant’s functionality is impaired and that the chronic pain is the cause of the disability.

10In considering whether the applicant suffers from chronic pain such that her pain affects her function, I reviewed Ms. Jessa’s report dated September 18, 2019 and gave this report very little weight for the following reasons:

(i) The report concluded that the applicant did not meet the physical or cognitive demands of any of the suggested occupations. However, Ms. Jessa’s conclusions were not supported by her tests. For example, on the alphabetizing sequence and on the payroll computation tests, the applicant successfully completed 80% of the trial, but was only assigned a 5 (indicating less than 10% completed).⁵ On the small parts trial part test, the applicant completed the entire activity with a 100% success rate, but was assigned an average score of 3 and was also assigned the score of 34.51% on the small parts trial of the Method-Time Measurement (MTM) portion which resulted in a failure.⁶ Ms. Jessa also assigned similar scores on the small parts 2 test. On the pipe assembly test, the applicant completed the assignment within the time allotted with no errors. Ms. Jessa, however, assigned a score of 2 (above average) and yet still concluded that the applicant did not meet the MTM demands for manual dexterity;⁷

(ii) On cross-examination, Ms. Jessa was uncertain as to whether the results calculated were percentages or percentiles (regarding the classification of results between 1 to 5);

(iii) Ms. Jessa also explained that the MTM cutoff of 87.5% was not based on the applicant’s actual scores, but on how long it took her to complete the tasks. She was not able to provide further information as to how that score was tabulated indicating that she relied on the MTM software. Ms. Jessa also admitted that based on the software, the applicant would have had to score above average to meet the MTM in any category;⁸

(iv) Ms. Jessa also admitted on cross-examination that a person could meet the job aptitudes qualifications without meeting the MTM qualifications.⁹ She acknowledged that Dr. Masud’s file did not list the functional limitations that the applicant described to her during the assessment and relied on the applicant’s self-reports of her best capabilities.¹⁰ Ms. Jessa admitted that she could not speak to any causation of the applicant’s limitations;¹¹ and

(v) Ms. Jessa’s report and testimony did not accurately reflect the applicant’s functionality. Ms. Jessa’s admission that the applicant did not meet the MTM test is not determinative of the applicant’s ability to perform work tasks. Her report shows that the applicant was successful in many of the tasks assigned.

11I find based on the above analysis that the applicant’s scores were reflective of an ability to work, notwithstanding Ms. Jessa’s report and its conclusions. Ms. Jessa’s conclusions are not reflective of the tests and, therefore, this evidence is not reliable as to the applicant’s ability to function. Ms. Jessa’s admission that the MTM test is not determinative of the applicant’ ability to perform work tasks also does not assist the applicant to prove her ability to function, which the applicant has to prove on a balance of probabilities.

12The applicant’s doctor Dr. Masud referred the applicant to a pain clinic based on her complaints, but there were no reports filed from any pain clinic relating to the applicant’s ability to function. In a July 10, 2019 entry in Dr. Masud’s clinical notes and record (“CNRs”), Dr. Masud noted that the applicant had no restrictions relating to her regular activity, normal neck rotation, and normal muscle power in her upper limbs. Dr. Masud’s September 14, 2019 CNR entry indicated that the applicant had no complaints.

13Dr. McCutcheon (as discussed in paragraph [33] of the decision) found no problem with the applicant’s functioning. I also found the surveillence evidence persuasive in showing the applicant's level of function as she attended the racetrack, the pharmacy, the gas station, etc. without any apparent limitations.

14Based on the above analyses, and in addition to the facts set out in paragraphs [31] to [35] of the decision, I find that the applicant has not proven on a balance of probabilities that her pain is more than a sequelae of her soft tissue injuries. I do not find that the applicant suffers from chronic pain such that her accident-related injuries would fall outside of the MIG.

15I find that the applicant’s pain does not affect her functioning and, therefore, her injuries fall within the MIG.

Is the applicant entitled to an IRB in the amount of $256.31 per week for the period from November 10, 2017 to date and ongoing?

16I find that the applicant has not proven on a balance of probabilities that she suffers a substantial inability to perform the essential tasks of her pre-accident employment during the first 104-weeks of the accident from November 10, 2017 to January 9, 2019 as required under s. 5 of the Schedule to be entitled to IRBs.

17The applicant worked as a general labourer prior to the accident in a factory packaging light cosmetic on an assembly line. She was a line worker which involved standing for 8 hours, packaging, and completing repetitive movements. Her job required her to lift boxes from the floor to the assembly line and place boxes onto a skid once the items were packed. The applicant was paid IRBs to November 10, 2017, by the respondent.

18The applicant admitted that she had no restrictions on active participation when she applied for Ontario Works (“OW”) on May 5, 2018. The applicant also signed another form for OW on October 19, 2018 indicating that she had no restrictions on working. These statements alone refute any inability for the applicant not being able to work.

19I rely also on the reports of Dr. McCutcheon, Cynthia Kresak and Dr. Lang, indicating that the applicant can work and I prefer their reports over the reports of Dr. Getahun and Dr. Azadian for the reasons set out in paragraphs [41] to [43] of the decision.

20I also give little to no weight to Ms. Jessa’s report in determining the applicant’s entitlement to IRBs for the reasons set out in paragraphs [10] and [11] above.

21The test for IRBs post-104 weeks after the accident is more stringent than the pre-104-week test. The applicant must show a complete inability to engage in any employment after the 104-weeks to qualify for IRBs from January 10, 2019 and ongoing. I find that the applicant has not proven on a balance of probabilities that she is entitled to IRBs during this period for the reasons set out below.

22If the applicant is not entitled to a continuous IRB in the 104 weeks after the accident, the applicant is not entitled to IRBs during the post-104-week accident period unless there was a significant deterioration in their condition.¹²

23The applicant has not provided any medical evidence after June 2017 relating to her substantial inability to work, let alone a deterioration in her medical condition. In November 2017, Dr. Lang confirmed that the applicant was able to return to work. Further, both Dr. McCutcheon and Cynthia Kresak reported that the applicant could work. Finally, the OW applications and the surveillance evidence show that the applicant’s ability to function had not deteriorated in any way as of January 10, 2019 forward.

24Based on the reasons set out above, I find that the applicant is not entitled to IRBs from November 10, 2017 to date and ongoing.

Interest

25As there are no benefits owing, no interest is payable.

CONCLUSION

26For the reasons set out above, the application is dismissed.

Footnotes

1. 1O. Reg. 34/10.
2. 2R.K.K. v Cooperators General Insurance Co., 2020 CanLII 43702 (ON LAT).
3. 3Minor Injury Guideline, Superintendent’s Guideline 01/14, issued pursuant to s. 268.3 (1.1) of the Insurance Act.
4. 4R.K.K. v. Cooperators General Insurance Co., 2021 CanLII 18934 (ON LAT Reconsideration Decision).
5. 5Exhibit 1(b), p387, 388.
6. 6Exhibit 1(b), p389-390, 407.
7. 7Exhibit 1(b), p390-391, 407.
8. 8Transcripts February 28, p47-49 and 50.
9. 9Transcripts February 28. p50.
10. 10Transcripts February 28, p39 and 68.
11. 11Transcripts February 28, p88-89.
12. 1217-000502 v RSA, 2018 CanLII 1878 (ONLAT), Respondent’s Book of Authorities, Tab 8, p20.